Last week, California Governor Gavin Newsom signed an Executive Order mandating 80 hours of supplemental paid sick leave for COVID-19 related reasons be provided to “food sector workers” at private companies with 500 or more employees. The Order builds upon the federal Families First Coronavirus Response Act (FFCRA), which imposes similar requirements for employers with fewer than 500 employees. The Order is in effect now and will continue to be effective for the duration of any statewide stay-at-home order.

The Basics

The Order applies to all private entities employing food sector workers with 500 or more employees in the United States. Employees are counted the same way as under FFCRA.

The Order applies to all food sector workers who perform work for or through the company, regardless of whether they are deemed employees of the company.

Both full and part-time workers are covered under the Order.

Supplemental paid sick leave must be made available for immediate use upon the oral or written request of a qualifying worker.

A company is excluded from the scope of the Order if the business provides a supplemental paid benefit that will compensate workers for the same purposes as the Order and at a level at least equal to the benefits provided under the Order as of April 16, 2020.

Which workers are eligible for the mandated paid leave?

To qualify as a “Food Sector Worker” eligible for supplemental paid sick leave under the Order, the worker must perform work for or through a company with 500 or more employees nationwide, and:

Satisfy one of the following:

Work in one of the industries or occupations defined in Industrial Welfare Commission (“IWC”) Wage Order 3-2001 § 2(B) (the canning, freezing, and preserving industry); IWC Wage Order 8-2001 § 2(H) (industries processing agricultural products after harvest); IWC Wage Order 13-2001 § 2(H) (facilities on a farm that prepare products for market); or IWC Wage Order 14-2001 § 2(D) (general agricultural occupations); or

Work for a business that runs a “food facility” as that term is defined by Health and Safety Code Section 113789(a)-(b), which, according to the California Department of Industrial Relations, includes grocery stores, fast-food restaurants, and distribution centers, and according to section 113789, excludes certain entities such as churches or non-profits that sell food to members, certain care facilities, and commercial food processing establishments; or

Deliver food from a food facility for or through a covered business.

Be exempt from the state-wide stay-at-home order as an essential worker; and

Perform work for the business outside the home.

When must an Employer provide paid sick leave?

The Order requires an employer to provide paid sick leave if the food sector worker is unable to work due to any one of the following reasons:

The worker is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

The worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or

The worker is prohibited from working by the company due to health concerns related to the potential transmission of COVID-19.

What benefits must be provided?

A covered food sector worker is entitled to supplemental paid sick leave at an hourly rate equal to the highest of (1) the worker’s regular rate of pay for the last pay period; (2) the State minimum wage; or (3) the local minimum wage.

A covered business is not required to pay supplemental paid sick leave more than $511 per day and $5,110 in aggregate total.

Full-time workers or workers scheduled to work an average of at least 40 hours per week in the two weeks before the leave is taken are entitled to 80 hours of supplemental paid sick leave under the Executive Order.

Part-time workers are entitled to supplemental paid sick leave equal to the number of hours the worker is normally scheduled to work over a two-week period provided that the worker has a normal weekly schedule. Part-time workers with variable hours may take fourteen times the average number of hours the worker worked each day in the six months preceding the date the worker takes supplemental paid sick leave. In cases where the part-time worker has worked for the company for fewer than six months, the number of hours is calculated over the entire time the worker has performed services for the company.

Notice of Benefits Must be Posted

Covered employers must display a poster in a conspicuous place that contains information about supplemental paid sick leave available under the Order. If a company’s food sector workers do not frequent a particular workplace, then the employer may use electronic means to convey the availability of the benefit. The California Labor Commissioner is scheduled to provide additional guidance on notice requirements today, April 23, 2020. Covered employers should immediately familiarize themselves with the Order and be prepared to provide the mandated supplemental sick leave to covered workers.

For more information, contact your Foley relationship partner. Foley has created a multi-disciplinary and multi-jurisdictional team, which has prepared a wealth of topical client resources and is prepared to help our clients meet the legal and business challenges that the coronavirus outbreak is creating for stakeholders across a range of industries. Click here for Foley’s Coronavirus Resource Center to stay apprised of relevant developments, insights and resources to support your business during this challenging time. To receive this content directly in your inbox, click here and submit the form.

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